Kelsen's Theory of Unamendability

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Questions and Answers

According to Schmitt, what is the primary determinant of constitutional amendments?

  • A fundamental political decision that cannot be reduced to legal logic. (correct)
  • The consistent interpretation of previous legal precedents.
  • Adherence to the formal legal procedure outlined in the constitution.
  • The hierarchical relationship between norms as prescribed by a Grundnorm.

How does Kelsen's view of unamendable provisions differ from Schmitt's?

  • Kelsen sees it as stemming from a foundational norm (Grundnorm), while Schmitt sees it as based on political realities. (correct)
  • Kelsen focuses on the historical contingencies of the law while Schmitt focuses on formal validity of the law.
  • Kelsen sees it as primarily deriving from political will, while Schmitt sees it as a legal conclusion.
  • Kelsen believes it is flexible based on public opinion, while Schmitt believes it is stable.

Which aspect of a legal system did Kelsen prioritize in his analysis?

  • The historical context and societal impact on legal decisions.
  • The concrete political will in shaping a constitution.
  • The formal, logical structure and hierarchical relationships between norms. (correct)
  • The implications of public opinion on the validity of the law.

What potential problem does Schmitt's emphasis on political decision-making introduce to the law?

<p>It may lead to instability or arbitrariness if the process is not controlled. (D)</p> Signup and view all the answers

What tension does the debate between Kelsen and Schmitt highlight regarding the law?

<p>The tension between formal validity and political influence. (C)</p> Signup and view all the answers

According to Kelsen, from where does the authority of a constitution's unamendable provisions originate?

<p>From a superior norm, potentially the Grundnorm. (C)</p> Signup and view all the answers

What concept did Kelsen introduce to explain the basis of all legal norms, including the constitution?

<p>The Grundnorm (A)</p> Signup and view all the answers

How did Kelsen view the relationship between the Grundnorm and constitutional amendments?

<p>The Grundnorm sets the limits for valid constitutional amendments. (B)</p> Signup and view all the answers

What was Schmitt’s main criticism of Kelsen's theory of constitutional unamendability?

<p>It was too reliant on abstract rules and neglected the political reality. (B)</p> Signup and view all the answers

According to Schmitt, what does a constitutional order require beyond formal validity?

<p>An authority that can interpret and uphold the constitution. (B)</p> Signup and view all the answers

According to Schmitt, what is the fundamental nature of a constitutional amendment?

<p>Fundamentally a political action. (B)</p> Signup and view all the answers

According to Schmitt, what is a potential source of constitutional authority beyond formal validity?

<p>Political and historical factors and societal understandings. (C)</p> Signup and view all the answers

What central aspect of legal systems was Kelsen most concerned with when addressing the issue of unamendability?

<p>The logical structure and hierarchical character. (C)</p> Signup and view all the answers

Flashcards

Political Decision in Constitutional Moments

The idea that fundamental changes to a constitution, like amendments, are not just about legal procedures, but also involve core political choices with a strong societal impact.

Grundnorm

A theoretical foundational norm that underpins a legal system, providing its ultimate source of validity. It's like the base of a pyramid, with all other legal rules stemming from it.

Legal Hierarchy

The idea that legal systems operate through a hierarchy of rules, where each level is valid because it derives its power from the level above, ultimately leading back to the Grundnorm.

Unamendable Provisions

A provision in a constitution that cannot be easily changed, often seen as crucial for protecting core principles.

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Political Will in Constitutional Interpretation

The idea that a constitution's true meaning and application rely heavily on the political will and decisions of those in power, not just on its legal text.

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Kelsen's Grundnorm

Kelsen's theory that a constitution's unamendable provisions get their validity from a higher, foundational norm called the 'Grundnorm'. This Grundnorm sets the rules for making and amending a constitution.

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Kelsen's Formalism

Kelsen believed that legal systems are structured in a hierarchy, with each rule's validity deriving from a higher one. This upholds consistency and logic in the legal order.

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Schmitt's Critique of Kelsen

Schmitt argued that the 'Grundnorm' is too abstract and ignores the political reality of constitutional creation and maintenance. He believed that constitutional life is driven by political decisions.

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Political Context in Interpretation

Schmitt argued that constitutional interpretation and amendment aren't just about legal rules, but are also influenced by political circumstances and social understanding. This means that the meaning of the constitution can change over time.

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Authority Beyond the Constitution

Schmitt believed that there needs to be a political authority beyond the constitution itself that supports and interprets it. This authority ensures the constitution's lasting power.

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Political Act of Amendment

Schmitt believed that the act of amending a constitution is fundamentally a political act, influenced by power dynamics and societal values.

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Political and Historical Basis of Unamendability

Schmitt argued that unamendable provisions in a constitution are not solely based on legal rules but also on historical events and social understandings, which can be political and contested.

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Debate on Constitutional Unamendability

Both Kelsen and Schmitt debated how to understand and justify the unamendability of certain constitutional provisions.

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Study Notes

Kelsen's View on Unamendability

  • Kelsen viewed constitutional unamendability as a specific case of a broader principle of legal validity.
  • A constitution's validity derives from a higher norm.
  • Unamendable provisions gain validity from a norm superior to the amending process.
  • Kelsen proposed a Grundnorm, a fundamental norm, underlying all legal norms within a system.
  • The Grundnorm establishes the legality of constitution-making and amendment processes.
  • Unamendable provisions are rooted in the Grundnorm, making them foundational.
  • These provisions limit the amendment process, which itself adheres to the Grundnorm's parameters.
  • Kelsen focused on the principle of legality and a consistent legal order.
  • His formalism emphasized the structured, hierarchical nature of legal systems.

Schmitt's Critique of Kelsen's View

  • Schmitt criticized Kelsen's theory for overlooking the practical realities of constitutional life.
  • He argued that Kelsen's focus on formal validity was overly abstract.
  • Schmitt emphasized political decision-making's role in constitutional order.
  • He criticized Kelsen's disregard for the practical application and interpretation of constitutional norms.
  • Schmitt argued that a constitution requires an external authority—beyond the constitution—for interpretation and enforcement.
  • This authority might be drawn from political, historical, or societal considerations.
  • He considered the amendment process a political act, not merely a legal one.
  • Schmitt believed unamendability may arise from historical and societal understandings, rather than just formal validity.
  • Schmitt viewed political decisions—like those concerning amendment—as irreducible to legal logic.

Key Differences Summarized

  • Kelsen focused on legal systems' formal structure; Schmitt on political decision-making in constitutional affairs.
  • Kelsen saw unamendable provisions as rooted in the Grundnorm; Schmitt argued they arise from political realities.
  • Kelsen emphasized formal validity and interpretation; Schmitt emphasized the political will.

Implications of the Different Perspectives

  • Kelsen's view offers stability, but might not reflect evolving political needs.
  • Schmitt's perspective fosters flexibility but could be unstable if not managed.
  • The Kelsen–Schmitt debate highlights tensions between a rule-based legal order and political realities.
  • These perspectives illustrate differing views on the relationship between law and politics concerning constitutional unamendability.

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